*1 Plaintiff Procaps S.A. (“Procaps”) wants the Undersigned to reconsider an Order denying its motion for leave to take additional depositions, and it has filed a motion [ECF No. 775] to obtain this relief. Defendant Patheon Inc. (“Patheon”) opposes the motion. [ECF No. 784].

In its initial motion for additional depositions [ECF No. 724], Procaps hinged its argument on newly-produced documents from DSM Pharmaceutical Products, Inc. (“DSM”) and on documents which Procaps expects DSM will soon be producing from Patheon's data room. DSM is not a party to this lawsuit, though it is related to Patheon in that the two companies are part of the DPx Holdings B.V. (“DPx”) group. Procaps served a duces tecum subpoena on DSM in New Jersey approximately 18 months ago (in December 2013) and has been litigating motions to compel production against DSM in the New Jersey federal district court. DSM has already produced some documents and is still expected to produce more (from Patheon's data room) after a federal magistrate judge[1] granted, in part, Procaps’ third motion to compel. It did not, however, ever serve DSM with a deposition subpoena.

Procaps’ initial motion for additional depositions did not specify any particular document or information that DSM recently produced, which purportedly generated a specific need for more depositions. Instead, Procaps argued that the index to Patheon's data room contains several folders and topics which it contends are relevant, such as “Top 10 Customers Banner,” “Anti-trust,” “Current Litigation and Claims” and “Acquisitions.” Procaps noted that DSM already (albeit belatedly) produced 1,825 documents, 238 of which “reference” Procaps. One hundred documents are emails to Patheon employees and some unspecified number are slides and spreadsheets analyzing Patheon's and Banner's role in the softgel market and industry.

Procaps argues that it did not have any of these documents when it took critical depositions in this case. That may well be true, but it is not enough. Procaps did not explain how any of the documents are important or significant, nor did the motion outline why any document or set of documents produced by DSM would be of significant use at one or more of the requested additional depositions. And it did not indicate why unspecified, not-yet-produced documents in a folder whose name might suggest the presence of relevant material actually trigger the need for more depositions.

Patheon stressed these omissions in its opposition [ECF No. 730]. For example, it underscored the point that Procaps’ motion did not even identify the subject matter of the DSM documents which Procaps argued contained “key factual admissions.” Similarly, Patheon noted that the mere fact that 238 DSM documents happen to mention the word “Procaps” is hardly a sufficient ground to permit additional depositions.

*2 Likewise, the Court's order [ECF No. 737] (i.e., the one Procaps wants reconsidered) denying the motion for additional depositions made the point that Procaps had not established reasons why the new documents produced by DSM create grounds for additional depositions.

Framed by this procedural history, one might assume that a reconsideration motion would rely on specific documents and would provide particular reasons why particular documents justify more depositions. But the reconsideration motion does not do that. Instead, most of the motion is an effort to urge Procaps’ theory that it never actually changed its theory of the case and that the Court mistakenly relied on Procaps’ so-called change in position as the sole ground to deny the additional deposition request. The motion contends that the prior ruling “effectively rewards the gamesmanship played by DSM, Patheon and DPx” and “unfairly penal[izes] Procaps based on an erroneous assumption that Procaps did something wrong.”

The Undersigned will not spend much time here explaining yet again how Procaps did in fact change its theory of the case. Suffice it to say, Procaps avoided discovery by arguing that it would never pursue a rule of reason antitrust case -- but it is now doing exactly that.

Only a small portion of the reconsideration motion addresses the supposed substantive grounds for permitting Procaps to take additional depositions. Specifically, Procaps repeats the point that the motion is based on the “extremely belated timing of DSM's document production.” The reconsideration motion does not, however, quote from (or summarize) a particular document (e.g., ‘DSM finally produced a document -- DSM Bates number 123 -- showing that Patheon actually did X or actually representing that Y would occur or, contrary to prior denials, took Z business position, in violation of the federal antitrust laws’).

Assuming for the sake of discussion only[2] that DSM intentionally delayed its production of documents to Procaps for an impermissible strategic reason designed to assist Patheon, this scenario does not necessarily mean that Procaps needs to take additional depositions. It might mean that, of course, but Procaps has not demonstrated the need. To the contrary, it relies on sweeping generalities and emotional rhetoric (e.g., “it is fundamentally unfair” for the Court to not permit additional depositions). Without a reference to specific documents and without explaining why a particular late-produced document creates a need for additional depositions, Procaps’ motion is not persuasive.

*3 The Undersigned recognizes that DSM is expected to produce additional material from Patheon's data room by July 12, 2015[3] and that Procaps therefore cannot yet specify how documents not-yet-produced would create the need for additional depositions.[4] Thus, the Undersigned denies without prejudice the reconsideration motion. If DSM produces additional documents from Patheon's data room which Procaps can show are significantly relevant and generate extremely compelling grounds for additional depositions, then it may file another motion for additional discovery. The longer Procaps waits to file such a motion after receiving additional DSM discovery, the less likely an order permitting additional depositions.[5] And at the risk of stating the obvious and repeating themes outlined above, the mere fact that a document mentions Procaps or softgels or Banner (or any other name or concept) is not, without more, sufficient to justify additional depositions.

DONE AND ORDERED in Chambers, in Miami, Florida, July 1, 2015.